May It Please The Court
Quote of the Day - Neither you nor I nor Einstein nor the Supreme Court of the United States is brilliant enough to reach an intelligent decision on any problem without first getting the facts.
Who Needs Tort Reform? The Supreme Court Sends Plaintiffs Packing.
What some have perceived as a swing to the right in the Supreme Court may have called it wrong. It's more like they're saying "Katie bar the door" against flimsy, class-action complaints. In a decision earlier today, the Supreme Court took down a class-action complaint for failing to meet basic, minimum pleading standards. In the case of Bell Atlantic Corp. v. Twombly, the Plaintiffs alleged that a group of the Baby Bells engaged in antitrust actions designed to stifle competition from upstart telephone companies in their respective geographical regions.
The Plaintiffs' theory centered around the parallel behavior of the various Baby Bells, but did not allege any specific facts to support their allegations of an unlawful agreement between the Baby Bells. Essentially, the complaint theorized, because the Baby Bells weren't competing with each other by invading the others' regional territories, there must have been behavior worthy of an antitrust claim.
While it may at first sound like a boring day in a law school civil procedure class, the case will likely ring a death knell for a group of poorly pleaded class action complaints.
The Court essentially ruled that without further factual enhancement, the Plaintiff's complaint "stops short of the line between possibility and plausibility," and the Court wanted to see a plausible complaint, not one with the mere possibility that their may be a valid antitrust claim against the Defendants. The Court said, "Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."
The opinion struck down a largely disregarded pleading standard that allowed class action complaints to proceed if there were "no set of facts that would permit plaintiffs to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence." In other words, the Court struck down the negative pregnant concept. In plain English, class action plaintiffs can no longer just "gin up" their claims and hold businesses hostage.
The Court also gave a tip of the hat to businesses, noting the cost of dealing with class action complaints: "... [its] quite another [thing] to forget that proceeding to antitrust discovery can be expensive. That potential expense is obvious here, where plaintiffs represent a putative class of at least 90 percent of subscribers to local telephone or high-speed Internet service in an action against America's largest telecommunications firms for unspecified instances of antitrust violations that allegedly occurred over a 7-year period.
Do we still need tort reform? Not when we get rulings like this one.
Where Was Their Lawyer During The TV Interview?
The News Anchor Doesn't Have To Read You Your Miranda Rights
One of the the Barbie Bandits, Heather Johnston, went on ABC's Good Morning America yesterday. She hasn't yet entered a plea in the case, but after this interview, I can't see how it could be anything other than guilty. Read this story, and give it some thought. Here's a quote from a portion of CNN"s story from the last link:
"Johnston said the idea of robbing a bank began as a joke.
'I mean, it's crossed a lot of people's minds, from what I've heard,' she said.
But things did not go as expected. The two never got wigs as they had earlier planned. And after getting lost on the way to the bank, they initially went to the wrong bank branch.
'We took a wrong turn somewhere, ended up going to a completely different Bank of America,' Johnston said.
She said they called their teller contact and went to his branch without worrying about how the robbery would unfold. "We had an inside man," she said.
As the teller gave them the money, the cash nearly got away from them, too.
'He started throwing it and it was like going everywhere,' Johnston said.
She also talked about the stylish sunglasses she and Ashley Miller wore during the heist, which was meant to look like a robbery.
'We had got them a couple weeks before this even came up. Like, we called them our stunner shades,' she said.
Johnston laughed about what she and Miller did after the robbery: 'Go straight to the mall.' The first thing they did was visit an upscale hair salon to get highlights in their hair.
'Some of the stuff we did was pretty ignorant,' she said."
Ya think? Even if the only knowledge you have of the law comes from television, certainly you know enough to not admit your guilt to the entire nation before you go on trial.
Maybe she's never watched Boston Legal, and just played video games. Both Barbie Bandits are 19 years old.
RICO Gets A Transfusion: Unum Life Insurance And Microsoft Left Bleeding
Not in the too distant past, attempts to use RICO, the Racketeer Influenced and Corrupt Organizations Act, in civil cases were shut down by the Courts as an abuse of the intent of the legislature. The Courts regularly cited the statutory scheme enacted by Congress as restricted to prosecutors and limited the power of the Act to efforts to go after mobsters and criminal organizations when creative lawyers tried vainly to strike at corporate monoliths.
Not so anymore.
First, about a week ago, the Ninth Circuit allowed a RICO case to proceed against Microsoft for selling a Trial CD for its website portal, MSN, but allegedly continuing to charge the recipient's credit card without telling him. Then at the end of this week, the Third Circuit allowed another RICO case to proceed against Unum Life Insurance Company for allegedly cutting off its disability benefits early.
Perhaps the pendulum is starting to swing back toward allowing RICO to be used in civil actions.
These two RICO cases may portend bigger problems for American corporations The standard of proof is lower, the range of admissible evidence is wider, but worst of all for corporations, they allow the plaintiffs to recover attorneys fees and apply to the courts to multiply the attorneys fees award if the case is complicated and the plaintiffs are successful and brought a large benefit to many people.
While Microsoft may claim that the Ninth Circuit's ruling is a just a procedural technicality in the case against them, that's far from what their lawyers are likely telling the company. One thing is for sure, however: the settlement value of both cases just skyrocketed.
Reinsurer Ordered To Pay AIG Insurance For Environmental / Toxic Tort Claims
Back in 1973, insurance coverage for environmental claims was a given. Policies issued to businesses covered exactly those types of claims. As most know, insurance companies further spread the risks they insured to other insurance companies, a process called reinsurance.
When AIG paid environmental claims back in 1973, they submitted the bills to their reinsurers, Argonaut Insurance. Argonaut didn't, however, pay the claims back to AIG.
As a side note, it's a bit comforting to know that even big insurance companies can't get their insurance claims paid.
So, just like the rest of us when our insurance doesn't pay a claim, AIG took Argonaut to court. AIG just got it's verdict upheld: Argonaut must now pay about $7 million for previously unpaid claims.
That's the price of obstinance.
MIPTC And Larry Bodine Offer Webinar On Marketing By Blogging
Here's a little bit of shilling for an upcoming webinar that Larry Bodine and I are offering (and yes, we will get paid from the fees charged).
In this live Webinar, please join me and fellow veteran blogger Larry Bodine, Esq., author of the LawMarketing Blog, describe how a blogs attract new clients and generate new revenue. Attendees will get step-by-step instructions and practical techniques to harness a blog for business development. You can click here to sign up for this event.
Webinar Date: Thursday, June 7, 2007, Noon Central Time
Location: On the Web, on your computer.
There are 1,800 active law firm blogs and lawyers post 117,000 posts on an average day. Done properly, a blog will attract clients, generate fee revenue, spark calls from the news media and establish a national reputation for you.
Contact Laura Kresich: (312) 217-3895
or email Lkresich@LawMarketing.com
Registration fee: $300
Sign up online at http://www.pbdi.org/pages/cceventform.asp?EventID=152
As you may know I started this weblog, MayItPleaseTheCourt.com in August 2004. You'll find posts here focusing on legal news and observations, which have brought our firm a significant amount of legal business. Thanks to the blog, his practice has grown in complex business litigation involving environmental, real estate, land-use and computer matters and their respective insurance coverage and related tort issues. MIPTC has also generated interviews from news reporters at the New York Times, Business Week and other national publications.
Larry Bodine, a lawyer and business development advisor in the Chicago area, launched his LawMarketing Blog in April 2004 at http://blog.larrybodine.com/. It quickly became a leading online destination for information on how law firms can get new clients and generate new business. The site attracts hundreds of visitors per day, many of whom call Larry to retain him for new projects. Because many visitors are from the news media, he has appeared on national television and been quoted in numerous legal news publications.
Who should attend
Attendees will get practical, how-to information on creating and tuning up a blog to generate more business and increase revenue. Among the topics Williams and Bodine will cover are:
Which topics to write about to attract clients and make you money.
How often to post new material and finding the time to write new material.
Easy ways to find content for your blog.
Getting the news media to call you and winning the "race to the keyboard."
Promoting your blog and creating buzz about it.
Developing a distinctive voice that attracts visitors.
Elements of a money-making blog post.
What topics to write about and which topics to keep away from.
Common blogging mistakes and how to avoid them.
The importance of a professional design, your photo and use of graphics.
How to keep track of other bloggers -- and see what they are saying about you.
A case history of a successful lawyer blog, and how you can duplicate it.
Lawyer to Lawyer Internet Radio Deals With "Life is Short Get A Divorce" Billboard In Chicago
Earlier this month, chaos ensued when the all-female law firm, Fetman, Garland & Associates, put up a racy, 20-foot long billboard in a trendy Chicago neighborhood, reading "Life is Short. Get a Divorce." On Lawyer 2 Lawyer, we discuss this controversial ad and question whether the firm went too far.
We also discuss the fallout and the advertising campaigns effect on the validity of attorneys. Join me as I discuss this hot topic with the experts: Larry Bodine, a business development advisor who helps law firms, Tim O'Brien, President/CEO of The Personal Branding Group, Inc. and Jeffery Leving, national litigator and consultant from the Law Offices of Jeffery M. Leving, Ltd. in Chicago. Don't miss it!
Is It The Beginning Of The End? Outsourcing Local News To India
I don't know whether to laugh or cry. While MIPTC counts many local journalists as friends, including those employed by the Orange County Register and the Los Angeles Times, it's not hard to imagine what their response will be to this NPR piece: A local Pasadena news website plans to outsource its coverage of local city council meetings to India.
After all, Publisher James Macphearson of www.pasadenanow.com reasons, the city council meetings are available on the web, and we all know reporters in India charge a fraction of what we pay local reporters, and even news reporters in India have access to email.
Next thing you know, they'll be outsourcing tech support for computers and computer software to India.
Oh, right. They already do that.
Will Alabama Ban Possession Of Sex Toys Next?
Imagine That Amnesty Program.
Here's the follow-up to a February 14, 2007 ruling from the Alabama Supreme Court, as MIPTC previously reported: stores who lost their attempts to overturn the Alabama legislature's ban on selling sex toys have taken their appeal to the U.S. Supreme Court.
Alabamans need not worry, however. The sex toy stores are not likely to get a favorable reception - the U.S. Supreme Court turned down their request back in 2005, and they've lost at least three times in the Alabama Supreme Court.
The Alabama legislature got the whole ban started. You can possess sex toys in Alabama, you just can't sell them there. According to the Alabama Supreme Court, it's a legitimate attempt to legislate morality, but frankly the dichotomy is lost on me.
After all, if you're going to enact a ban on sales, why not also ban purchases and possession? Perhaps the Court doesn't want to face the news coverage when they start collecting sex toys in an amnesty program for state residents.